What should a family do after a loved one dies in an accident?

What should a family do after a fatal car accident?

After a fatal car accident in Florida, a family can protect itself by getting the death certificate and crash report, keeping every bill, saving photos and the vehicle, and starting the court process to appoint a personal representative. That person, appointed by the court to manage the estate, is the only one who can file a wrongful death lawsuit.

If a family member was killed in a car accident, the steps below follow the first weeks in order. They apply after any fatal accident, and the crash report steps apply to vehicle crashes. Florida sets a two-year deadline for filing a wrongful death lawsuit, with an exception explained in the last step below.

For more about these cases, see the page on wrongful death lawyers in Melbourne.

What does Florida law say after a fatal crash?

Who files, and for what kind of death

Section 768.19, Florida Statutes, covers a death "caused by the wrongful act, negligence, default, or breach of contract or warranty of any person," including on navigable waters, when the person who died could have sued and recovered damages for the injury if they had lived, even if the death happened in circumstances that are a felony. Section 768.20, Florida Statutes, says: "The action shall be brought by the decedent's personal representative," who recovers damages for the survivors and the estate of the person who died (the decedent). Section 731.201(28), Florida Statutes, defines that role as "the fiduciary appointed by the court to administer the estate," once called an executor or administrator.

The crash report

Under section 316.066(1), Florida Statutes, when a law enforcement officer investigates a crash that "Resulted in death," the officer must complete a "Florida Traffic Crash Report, Long Form" and submit it within 10 days after the investigation is completed, not 10 days after the crash, so the report may not be ready right away. Among other things, the report must list the witnesses' names and addresses, the officer's name, badge number and agency, and each party's insurance companies.

The death certificate

Under section 382.008, Florida Statutes, information about the cause of death in Florida death records is confidential and exempt from the public records law (except for approved health research), and copies of it may be issued only as section 382.025 allows. Under section 382.025, Florida Statutes, anyone who asks and pays the fee may get a certified copy of a death certificate without its confidential part. A certified copy that includes the confidential part (the cause of death) is issued only to the spouse or parent; to the child, grandchild, or sibling, if of legal age; to anyone who provides a properly signed will, an insurance policy, or another document showing an interest in the estate; to anyone who documents that they act on behalf of one of these people; to a government agency for official purposes with the department's approval; or by court order.

What happens in the first days and weeks?

A death certificate that says "pending"

The funeral director who first takes custody of your loved one's body files the death certificate, within 5 days after the death and before final disposition of the body. If extra time is granted to certify the cause of death, the funeral director files a temporary certificate stating that the cause of death is pending, and a permanent certificate with the cause of death later replaces it.

Insurance calls

Under section 627.736(1)(c), Florida Statutes, Florida's required PIP (personal injury protection) coverage includes "Death benefits of $5,000 per individual," in addition to the policy's medical and disability benefits. If a PIP policy applies, the insurer may pay the death benefit to the executor or administrator of your loved one's estate, to relatives by blood, legal adoption, or marriage, or to anyone who appears to the insurer to be equitably (fairly) entitled to it. For what PIP covers and when you can sue the other driver, see Can I sue the other driver after a Florida car accident if I have PIP?

What else do families ask after a fatal crash?

Who can file a wrongful death claim for our family?

As explained above, only the personal representative files the lawsuit, for the survivors and the estate. Who counts as a survivor, and how the court picks the personal representative, are covered in Who can file a wrongful death lawsuit in Florida?

Who pays for the funeral after a fatal crash?

Under section 768.21, Florida Statutes, a survivor who paid medical or funeral expenses caused by the injury or death may recover them in a wrongful death case. As for the PIP death benefit, the statute says who the insurer may pay, not what the money must be used for. For how wrongful death money is divided, see Who gets the money in a Florida wrongful death case?

Will there be an autopsy after a fatal car accident?

Generally, the medical examiner decides, not the family. Under section 406.11, Florida Statutes, when a person dies in Florida "By accident," the medical examiner of the district where the death occurred or the body was found "shall determine the cause of death," with the examinations, investigations and autopsies he or she considers necessary or the state attorney requests. Under the Medical Examiners Commission's rule 11G-2.003, Florida Administrative Code, absent good cause (unless there is a good reason not to), an autopsy must be performed when there is a reasonable suspicion that a death is by accident, unless the cause of death can be determined from a review of the circumstances, history, and available medical records. So the rule does not require an autopsy in every accidental death. The investigation may include questioning relatives, so the office may contact you.

Can the family get the crash report right away?

Possibly, depending on who is asking. Crash reports that reveal the identity, phone numbers, addresses, or other personal information of the people involved are confidential for 60 days after the report is filed. During those 60 days, a report may be released right away to the people the statute lists: the people involved in the crash, their legal representatives, their licensed insurance agents, their insurers (or insurers they applied to), people under contract with those insurers for claims or underwriting information, law enforcement agencies and their contractors, victim services programs, and government agencies or anyone acting for one in carrying out its functions, but not for redistribution to anyone not listed. Anyone asking for a report must show a valid driver license or other photo ID, proof of status, or identification showing they qualify, and sign a written sworn statement for each report that the confidential information will not be used, or knowingly shared, to solicit accident victims for business. Whether a family member or the personal representative fits the list is a question for the agency holding the report or a lawyer.

What should your family do now, and what should you keep?

What wrongful death evidence should families preserve? Start with official records and anything that shows what happened.

• Order certified copies of the death certificate. If you need the copy that shows the cause of death, check that the person ordering it is on the section 382.025 list above.
• Request the crash report from the agency that investigated, or through the Florida Crash Portal (FLHSMV). FLHSMV sells crash reports there for a fee, and its page says crash reports are exempt from public disclosure except for the parties involved in the crash and other parties the statute lists. Bring photo ID or proof that you qualify, and expect to sign a statement. Write down the agency and the report number.
• Keep the vehicle and the personal items in it as they are. Ask a lawyer before anyone repairs, releases, sells or salvages it.
• Save photos, videos, texts and phone records. Write down the names of witnesses and where nearby cameras are.
• Keep every medical and funeral bill and receipt, and note who paid each one (see the funeral question above).
• Write down the support and household help your loved one gave each family member.
• Start the court process to appoint a personal representative early, since that person files the wrongful death lawsuit.
• Read anything an insurance company asks you to sign before you sign it, and ask a lawyer if you are not sure what it means.
• Watch the deadline. Under section 95.11(5)(e), Florida Statutes, a wrongful death lawsuit must be filed within two years. That deadline does not apply to a wrongful death lawsuit against an individual for an intentional wrongful act causing death described in section 782.04 or section 782.07 (murder and manslaughter); that lawsuit may be filed at any time, and no arrest, criminal charge, or conviction is required first. That rule took effect May 11, 2010, and reaches earlier deaths only if the claim was not already time-barred, meaning too late to file, on that date. Under section 768.28, Florida Statutes, before a wrongful death lawsuit against the state or one of its agencies or subdivisions, the claim must be presented in writing to the Department of Financial Services within 2 years after the claim accrues, meaning arises. More detail is in How long do I have to file a wrongful death lawsuit in Florida?

Talk to a Melbourne wrongful death lawyer

We are sorry for your loss. Douglas R. Beam, P.A. is a personal injury law firm in Melbourne, Florida. If your family has questions about the records, the personal representative or the deadline, we can talk it through in a free consultation.

Call us at (321) 723-6591, or use the contact form on this site. Our office is at 25 West New Haven Avenue, Suite C, Melbourne, FL 32901.

Sources

• Section 768.19, Florida Statutes
• Section 768.20, Florida Statutes
• Section 768.21, Florida Statutes
• Section 731.201, Florida Statutes
• Section 316.066, Florida Statutes
• Section 406.11, Florida Statutes
• Rule 11G-2.003, Florida Administrative Code
• Section 382.008, Florida Statutes
• Section 382.025, Florida Statutes
• Section 627.736, Florida Statutes
• Section 95.11, Florida Statutes
• Section 782.04, Florida Statutes (murder)
• Section 782.07, Florida Statutes (manslaughter)
• Chapter 2010-45, Laws of Florida
• Section 768.28, Florida Statutes
• Florida Crash Portal (FLHSMV)